' KHAWAJA MUHAMMAD SHARIF, J.-This judgment will dispose of Criminal Appeal No,225 of 2002 directed against the judgment dated 30-5-2002 passed by the learned Additional Sessions Judge, Sheikhupura, whereby he convicted both the appellants under section 302(b), P.P.C. And sentenced them to undergo life imprisonment with further direction to pay Rs,50,000 each as compensation or in default thereof six months' S.I. Benefit of section 382-B, Cr.P.C. Was also granted to them.
2. Brief facts of the instant case as narrated by the complainant in the F.I.R. Are that on the day of occurrence i.e, 27-9-2001 at about 8-30 p.m. Muhammad Aslam brother of Amanat Ali complainant went away towards Barianwala after boarding two passengers in his Tonga.
Muhammad Aslam did not return. The complainant started search along with Niamat Ali and Javaid Iqbal P.Ws. At 11 p.m. When they reached near Disposal Pump, they found Muhammad Aslam lying dead, horse and Tonga were also present there. As per statement of complainant Exh.P.F., two unlqiown persons had murdered his brother with Fire-arms.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Abid Ali S-I. Along with his subordinates proceeded to the spot. He prepared the injury statement Exh.P.L. And inquest report Exh.PvM. He collected the bloodstained earth vide memo. Exh.P.A. Last worn-clothes were also received by him vide memo. Exh.P.G. He also recorded supplementary statement of Amanat Ali complainant and on 10-10-2001 he arrested Shahbaz Masih and Amanual Masih appellants. Shahbaz Masih got recovered Carbine P.2 vide memo. Exh.P.D. Amanual Masih also got recovered .30 bore pistol P.3 vide memo. Exh.P.E. Ultimately he completed the investigation of the case and challaned both the accused/appellants.
4. The prosecution in order to prove its case has produced as many as 12 witnesses including doctor, I.O., relevant and formal witnesses. After tendering in evidence report of Chemical Examiner Exh.P.O. Report of Serologist, Exh.P.P. And report of Forensic Science Laboratory Exh.P.Q, learned APP closed the prosecution evidenpe. Thereafter statement of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. Learned trial Court after taking into consideration the every aspect of the case and hearing both the parties, convicted and sentenced the appellants as mentioned above. Hence this appeal.
5. Learned counsel for the appellants in support of this appeal submits that it was an unwitnessed occurrence, that there is no eye-witness. The only evidence in this case is that last seen evidence furnished by the prosecution. Two witnesses Shamshad Ahmad and Abdul Razzaq are real cousins of the deceased while Amanat complainant is not an eye-witness. As far as recovery of pistol is concerned, that has been planted on the appellant Shehbaz Masih, that the prosecution has failed to prove the motive against the appellants and they are entitled to acquittal.
6. On the other hand learned State counsel submits that both Shamshad Ahmad and Abdul Razzaq P.Ws. Had no enmity with the appellants. They have fully implicated the appellants in this case. The pistol was got recovered from Shahbaz Masih and according to the report of Firearm Expert it matched with one of the crime empty recovered from the Spot so case against Shahbaz has been fully proved. As far as Amanual Masih appellant is concerned, he shared common intention with Shahbaz Masih appellant. He supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties. The occurrence in this case had taken place on 27-9-2001 at 8-30 p.m. i.e, Isha time. No source of light has been mentioned in the F.I.R., even two witnesses namely Shamshad Ahmad and Razzaq who are first cousin of the deceased, did not state either before the police or before the learned trial Court that under which light they had identified both the appellants. No identification parade was held in this case. There is no eye- witness and that in fact it was an unwitnessed occurrence. For the sake of arguments, if it is admitted that the two appellants were present in the Tonga on the day of occurrence along with the deceased who was driving the Tonga how it can be stated they were the appellants who had committed the murder of the deceased. Moreover, Shamshad Ahmad P.W. During the cross- examination had categorically stated that he was informed by Amanat the real brother of the deceased, about the murder of the deceased and he along with Amanat went to the P.S. If this was the position then why the complainant was not informed by Shamshad Ahmad P.W. That he had seen the deceased in the company of two accused/appellants. As far as motive is concerned, only this much was stated by Shamshad Ahmad that there was some dispute between the deceased and the appellants. No explanation has been given that what was the dispute, so prosecution has also not proved the motive.
8. Now I deal with the recovery of weapon. The occurrence had taken place on 27-9-2001.
Appellants in this case were arrested on 10-10-2001 and according to the prosecution, carbine was recovered from Shehbaz appellant on 11-10-2001. If one goes through the report of Fire-arm Expert the two parcels which were received by the office of Forensic. Science Laboratory are dated 16-10- 2001 and 20-10-2001 which shows that crime empties were sent on 15-10-2001 after the recovery of the carbine from the appellant and the possibility that after, firing from the said carbine these empties were prepared and then were sent cannot be ruled out, so no reliance can be placed on the Fire-arm Export. In the F.I.R. Nobody was named and even no description of any accused person was given in the F.I.R.
9. After having heard the learned counsel for the parties and going through the evidence available on the tile, I am of the opinion that case against the appellants is of very doubtful nature, so while granting benefit of doubt, I accept this appeal and set aside the conviction and sentence awarded to the appellants by the learned trial Court. Amanual Masih appellant is on bail. He is discharged .From the bail bonds. Shahbaz Masih appellant is behind the bars. He shall be Released forthwith if he is not required in any other case.